Posted
by
kdawson
on Tuesday February 05, 2008 @05:33PM
from the shooting-the-messenger dept.

netbuzz alerts us to a letter the EFF sent today to Senators Leahy and Specter pointing out a deleterious clause in the current draft of the Patent Reform Act of 2007 — which EFF generally supports. As written, the proposal would kill the EFF's Patent Busting Project. Fine print in the bill would limit the time in which a patent could be challenged, by anyone other than those suffering direct financial harm, to one year after the patent's grant. Since the EFF is non-profit it would have a hard time showing financial harm.

If you just wait a year, then sue everyone, no one will be able to challange the patent. You could even say for the first year it is free, so no one can claim financial damage. After that, no one can challange the patent.

I think you're reading it wrong. For the first year, anyone can claim harm. After that, only those financially harmed (ie, sued, or otherwise prevented from competing) could claim harm. So it's bad, just not quite that bad.

Still, how does one prevent the EFF folks from starting a sister corporation who creates a prototype of a potentially infringing device and claiming 'harm' since they can't sell it?

I think it's easier than that.... the EFF just needs to compile prior-art information and post it on a public web site, and if and when the patent troll tries to sue anybody, the people/companies being sued (and who are thus "being harmed") already have their case researched for them.

There's also nothing keeping the EFF or anyone else from challenging within the first year. There's also nothing saying the EFF can't provide legal and paralegal support to those directly harmed when those people or companies file.I think the one-year limit is bad, but it's not as bad as it's being made out to be.

The most important factors aren't in the summary. Does this apply to existing patents once the law passes, or only to new patents issued after? If it applies to existing patents, is the one year fr

An alternative way to game back is to contest every patent granted as soon as the grant comes out by claiming the "Obviousness" and "Prior art" statements. Just make a short use of Google and most patents will fall short. At least that may make the patent office saturated enough to keep their heads down.

One alternative is to use the Amazon Mechanical Turk [mturk.com] to get help to hunt for stupid patents. Just raise some money first.

Easier still... all they need to do is find one entity (person or corporation) that is being financially impacted (or let that entity find them), and just have their lawyers go about business as usually, officially representing the person or corporation instead of the EFF

Yes, but there's latency in the system, so that the harm may not be visible within the year, and the majority of the harm will be indirect. Actually, since an invention supposedly does something new, it will be extremely hard to prove direct harm of any kind - even from other corporations, as it's unlikely they're going to be harmed by buying a new component. A new system containing the component, yes, but that is indirect and so they have no redress under this. I'm actually quite puzzled as to who would be

I agree. While getting this clause removed should be the primary goal, in case of failure, the solution is simple: The EFF still continues to find the patents, then passes the knowledge accumulated to a OSS friendly company to pursue the challenge.

Well, controlling zombies is always a good idea. But we should really be sure about how many zombies we're talking about. I propose that Holy Water be added to the sprinkler system, and that the Senators must sit through a ten minute test run. Those who dissolve, mutate into a hideous form, or have their heads spin a full 360 degrees, should be required to declare themselves undead.

Which is exactly why it is not going to happen! It is pretty obvious Congress doesn't want responsibility for its proper function, which is why the Executive branch has been given so much unchecked power. It is also why they have 0200 and 0300 voice votes on really important -- and typically unconstitutional -- legislation like the Patriot Act. Now where did I leave that rectal smoke pipe...

What you want is bills that are accepted or rejected wholesale, as-is, unmodified.

The last thing you want is to make it easier for someone to add unrelated ammendments, or insert language that totally changes the meaning of the bill. Line-by-line, letter-by-letter editing would make doing this much easier, than the already easy "I submit an ammendment to prepend section 12, subsection (viii), item Q with the word 'not'".

Bills should be submitted in a take-it-or-leave it fashion. If you think you've got an improvement, submit a whole bill with that improvement and convince the original submitter to withdraw their bill.

Once we add CVS and source control the next thing we need is a compiler that actually turns the bill into a final form so that the "not" and "amended to add..." gets added into the sentences so we can see them in context instead of hundreds of pages away.

The reason no one reads the PATRIOT act is because it's almost all partial-sentence amendments to existing laws that are you can't see in context without access to a law library. Compile the source code of the nation so we can read it!

There currently exists editing and ammending to the point where the purpose of the law can be and is subverted.
What we NEED is CVS so that we know WHO is responsible for the changes, and comments where they can explain them.

The ability to perform a line by line veto (vs actually line by line editing) is something the President has been asking for over his administration. While a LBL would solve some problems, I believe it's the riders that get attached to a bill that are the real issue. If the President should line veto anything, the entire bill (riders and all) should be rejected/vetoed. The LBL should simply be an indication to Congress that this is something the President would probaboy sign and send it back to the Hous

We need line by line, letter by letter editing comments for bills. I want to know which dumbass sneaked this into the Bill.

Corporate lackeys writes them. What we need for bills are for them to be written so most people can read one within a few minutes and understand it. Of course congress critters have to be able to justify spending so much tyme in Washington so they don't have to work for a living. I propose an amendment to the Constitution of the USA that, like Texas, congress can only be in sessio

You need to go even further up the chain and start with the fubar'd methods by which the parties select their nominees. The Democrats at least do proportional delegates, whereas the Republicans use both proportion and winner takes all for their primaries. Some of the states are even more strange with multiple votes eliminating the non-viable candidates. Some states are wising up and doing proportional electoral votes for the real election - mostly because they are annoyed at being ignored as a non-flip-

You need to go even further up the chain and start with the fubar'd methods by which the parties select their nominees.

Well see, my plan fixes that. Instead of having caucasus all the candidates run for president. Before the 12th Amendment was passed that's how presidential elections were held. Of course the political parties didn't want to risk a candidate from one party being elected president and another one from a different party being the VP. John Adams [wikipedia.org] was elected as the USA's second president

I think what the parties are doing internally is their thing and not the job of the govt to regulate (though maybe applying antitrust legislation to break up the party duopoly might be a good idea...).

Actually, most earmarks essentially are "comments" in a budget item that are not voted upon, something like this: Instruction {spend a zillion dollars on advanced weapons systems} Remarks {That includes 25 million for the Aardvark missile system developed in congressman Alice's district, 10 million for the Bovine soldier telemetry project developed in congressman Bob's district...}What we really need (and is quite technically feasible) is a revision control system for legislation, in which every single ch

Err, what? Of course non-profits can suffer financial harm. Do you think they can't be sued, for example, or stolen from, or anything like that? What can't happen is that their profits are diminished - since they haven't got any -, but they sure can be harmed financially.

Fine print in the bill would limit the time in which a patent could be challenged, by anyone other than those suffering direct financial harm, to one year after the patent's grant.

Simple: The EFF buy one copy of software from someone who has had to pay patent extortion. The price that the EFF paid was presumably higher than it would have been if the software house did not have to pay patent dues... thus the EFF has suffered financially.

Simple: The EFF buy one copy of software from someone who has had to pay patent extortion. The price that the EFF paid was presumably higher than it would have been if the software house did not have to pay patent dues... thus the EFF has suffered financially.

The problem is that the standard is not, as the summary claims " anyone... suffering direct financial harm." Instead, the law is about third-party challenges. In other words, the only way after one year to challenge a patent would as a defense once sued over said patent.

..... to challenge a patent would as a defense once sued over said patent.....

So then all the EFF has to do is advertise far and wide that they will defend any victim of a patent troll that tries extortion based on a prior art patent that should never have been granted in the first place. If such a troll sues, the EFF comes with all its researched prior art and skilled lawyers to invalidate the patent.

The last thing the world needs is incontestable rights that were wrongly granted in the first place.

I can just hear the bill's defenders saying 'but this limitation would not be incontestability'. But patents are rights that can be asserted against the public generally. So this limitation on who can contest them, would be incontestability by a large section of the persons affected by the rights.

The last thing the world needs is incontestable rights that were wrongly granted in the first place.

I can just hear the bill's defenders saying 'but this limitation would not be incontestability'. But patents are rights that can be asserted against the public generally. So this limitation on who can contest them, would be incontestability by a large section of the persons affected by the rights.

A patent only grants the holder the presumption of validity. If they ever wish to assert their patent rights,

But patents are rights that can be asserted against the public generally. So this limitation on who can contest them, would be incontestability by a large section of the persons affected by the rights.

That provision of the law could probably be shot down in the courts as well on grounds of equal protection or something similar (IANAL). If the law can be enforced against you in a civil suit then you should have an equal right to contest the cause of action before it becomes a large sword haning over your head just waiting for the patent holder to drop it on your toes at the worst possible moment.

Sneaking in wording like that into a bill is a big problem in Congress. Wouldn't it be great, like the Wikipedia tracing project, if we could find a way to find which congressman inserted what weasel words, when and who their donors are?

Left to themselves Congresspeople generally aren't too bad... it's the undue influence that's causing most of the problems.

The real problem is that law makers think it is their job to... well, make laws. They become consumed by the process and can only think in terms of "more laws, more laws, more laws", never "let's sit back and do nothing for a while". I think we all need more Ron Pauls.

A lot of lawmakers are... lawyers. Too many damn politicians are ex-lawyers. You'd'a thunk that this would have the consequence of having good laws passed. Quite the opposite in practice. Example, the lawyer's solution to a crisis is to pass new laws. You're seen as doing *something*. However, laws cobbled together in haste have far reaching consequences, unseen side-effects. It's like making changes to a large software system, side-effects often happen. It happens a lot in the UK as well; Blair came from

The bulk of Congress people aren't too bad. The problem is the system doesn't place sufficient checks on the ones that are. And don't underestimate the power of private sector influence upon Congressional malfeasance: the military-industrial complex alone is responsible for an enormous amount of crap.

I suggest that what we really need is a second Patent Office. The first one can go on granting patents as usual. The second one's mission will be to invalidate and throw out as many patents as it can. Patent examiners in the second one will be paid bonuses according to how many patents they manage to invalidate.

I'm kidding... but only partly. The more I think about this, the more I like it.

...would definitely be a good idea. Actually, I'd have two new units, plus the original. You'd then have a pro-active team that actively opposes every patent that is submitted, seeking any possible prior art, any possible flaw, and taking in any filed preliminary challenges in the pre-patent cooling-off time. If the patent makes it through that, it then gets the "gentle" treatment from the regular patent folk. The third unit, the overseers, challenge both subordinate units to prove their points and prove their cases. Anything that gets through the system intact should be entitled to be challenged by anyone, but that challenge may be thrown out without hearing if it's a point already answered within the above chain. Existing patents would then be resubmitted but deemed valid until clearly shown otherwise by the first stage. Historic patents, no longer valid but of major public interest, should periodically be thrown through the same test to see if their granting was actually lawful. Less for any purpose of redress and more as an educational experience.

AFAIK, this is what the patent office is supposed to be doing right now. If they're not, how would a second office do any better? If you have an answer to that question, why can't that be applied to the existing patent office?

It should be what the patent office does, at least in my opinion, but the current patent office is a passive system for the most part, leaving it up to others to challenge, and mosty just handling the beurocracy and paperwork necessary to get things filed. The system I propose keeps the paper-shufflers totally seperate from the scrutinizers - a seperation of powers idea - and have both under the eye of a watchdog organization. I imagine the watchdog body to be primarily either people from the GAO or somethi

Heh, I've been making a similar quip/thought-experiment for a long time about having a "de-legislature", the only function of which is to remove law from the books.

But the real problem with both of these ideas is that the existing organizations (legislatures, the USPTO, etc.) really just need to operate for the good of individual citizens, without undue influence by the desires of powerful individuals, organizations, or corporations.

Taking my de-legislature case as an example, it'd be just as bad/good as the original depending on the level/lack of influence by external power influences. A corrupt de-legislature removing laws inconvenient to the powerful would be a pretty awful thing. The same problem applies to a corrupt "office of patent revocation"; it'd just make matters even worse than they already are.

Actually I like the idea of a constitutional amendment making all Congressional Bills have an automatic sunset clause of say 10 years and require that all bills be read into law in a Congressional session. That way the legislature has to decide that a bill is still worth the effort to renew. Not only that but it conveniently also limits the size of the law by limiting it to what can be read in x hours. If the founding fathers had any idea how large the federal government would become I'm fairly sure they would have included some similar clause to naturally limit its growth.

I've always thought that having automatic sunset clauses was a good idea. First, the bloat would automatically fall away and we'd lose all of those silly "It's unlawful for your shoes to be untied after 10pm" that are so much fun to laugh about but can be arbitrarily enforced for maximum unfairness. Second, having to reinstate the "murder is punishable" and similar obvious things will keep congress distracted from being able to meddle too much.

Requiring all members of Congress to be present for the entire reading would be a bit ungainly, even in the time of the founders other matters of state or travel might have precluded members from being present. However I DO like the idea of requiring members be present during the reading in order to vote on the measure, perhaps give bio-breaks every 4 hours to make it workable.

I've proposed a similar idea (expiry) some time back, the difference being:The Constitution should be renewed every 50 years (grace renewal period 25 years) - then you can have a fancy ceremony with fireworks etc on the renewal date (that is if the country is still around and still thinks the laws in the Constitution are a good idea;) ).

For the other laws- the longer the laws are to last, the more legislators have to be around to make them law or renew them.

require that all bills be read into law in a Congressional session. That way the legislature has to decide that a bill is still worth the effort to renew.

When I first thought about the idea of auto-sunsetting laws, I figured it was a great idea. There's a huge problem with that though, which you actually almost mentioned. Your words were "...legislature has to decide that a bill is still worth...". Given the given the history of our politicians, I'd expect that the automatic expiration of laws would

Instead of having two patent offices, just make the evaluation adversarial. For each patent application, have a proponent, an opponent, and a judge. The Catholic church decides on sainthood in a similar fashion. There is one priest who makes the case for sainthood and another, the Devil's Advocate, who opposes him.

We should make the patent office liable for damages done and court costs for the bogus patents they issue. They only started rubber-stamping business methods and software patents when they were required to generate revenue. So stop the revenue stream.

Yeah... here in Pittsburgh we have UPMC (University of Pittsburgh Medical Center) that is officially a non-profit, but operates several big hospitals AND an insurance plan. They had "non-profits" last year of over $1 billion (with a B).

Just because you are a non-profit organization doesn't mean you aren't harmed. Say you had a cash flow of $2,000. that means 2,000 came in and 2,000 went out. If a "bad" patent caused harm then the cash flow would have been $1,500, instead you spent 2,000. You were harmed to the tune of $500. Whether you show a profit, break even or loose money on you balance sheet doesn't affect whether or not the "bad" patent caused you harm it just affects the final numbers.
I can see how this would limit the EFF effort

The issue that the EFF would have is that since, as a non-profit engaged in advocacy, they're not likely to be directly financially harmed by most patents. It's not like the EFF sells less software or something due to software patents.

Let's also be clear that "non-profit" does NOT mean "does not make money". It has to do with what your goals are. In a for-profit company, your goal is to make money for yourself or your stock holders or whatever. For a non-profit, your goals relate to the betterment of the community you serve. "Non-profit" actually has very little to do with money. Many non-profits have vast sums of money in trust. In fact, if you spend all your money, you're probably not doing a very good job.

If, after one year, noone has 'come to harm' anyways, it is likely there will be noone to challenge the patent. If this is the case, no responsible company would cause itself to come to harm in order to then challenge the patent.

1 year from time of filing to protest? That's not good. Then most companies will wait 1 year before suing anyone since they'll be generally safer from challenges. There should be no limit on challenges. If a patent is bogus, it should be challengable by anyone at anytime.

Easy. I hereby declare that I will pay the EFF the sum of $0.01 each time the challenge a spurious patent older than one year. If this bill passes, they will suffer financial harm-- and can challenge the patent. (And I save $0.01)

Good idea.The project could actually keep collecting evidence and list it on a public website. Then everybody who is planning to "infringe" one of the bogus patents on the list could challenge the patent, because his business would be harmed financially.